Exhibit
10.40


 


AGILENT
TECHNOLOGIES, INC.


2005
DEFERRED COMPENSATION PLAN


 


(Amended
and Restated Effective October 28, 2009)


 


Section 1.                                          Establishment
and Purpose of Plan.


 


The Agilent Technologies, Inc.
2005 Deferred Compensation Plan was amended and restated effective September 17,
2007, amended and restated effective September 15, 2008, and further
amended and restated effective October 28, 2009.  The Plan continues the program of deferred
compensation embodied in the document for the Prior Plan in a manner designed
to comply with the requirements of the American Jobs Creation Act of 2004.  The rules of this Plan document, rather
than those of the Prior Plan Document, will govern new deferrals.  The Plan provides deferred compensation for a
select group of management or highly compensated employees as established in
Title I of ERISA.


 


The Plan is intended to be
an unfunded and unsecured deferred compensation arrangement between the
Participant and Agilent, in which the Participant agrees to give up a portion
of the Participant’s current compensation in exchange for Agilent’s unfunded
and unsecured promise to make a payment at a future date, as specified in Section 6.  Agilent retains the right, as provided in Section 13,
to amend or terminate the Plan at any time. 
Certain capitalized words used in the text of the Plan are defined in Section 19
in alphabetical order.


 


Section 2.                                          Participation
in the Plan.


 


2.1                                 All Eligible
Employees are eligible to defer Base Pay, Bonus, LTPP Awards, or NES Awards
under the Plan if they have Base Pay, at the time of election as specified in Section 3.1(a),
equal to or in excess of the Base Pay Threshold.  In addition, the Committee may provide that
company contributions may be made to the Plan for the benefit of a Participant
under the terms and conditions as may be specified by Agilent, in any manner
Agilent deems appropriate; provided, however, that any such contribution shall
comply with Section 409A of the Code, and any contribution made with
respect to a Covered Officer must be consistent with the requirements for
deductibility of compensation under Section 162(m) of the Code.


 


Section 3.                                          Timing
and Amounts of Deferred Compensation.


 


Eligible Employees shall
make elections to participate in the Plan, as follows:


 


3.1                                 Base Pay
Deferrals.


 


(a)                                  Timing of Base
Pay Deferral.  With
respect to a deferral of Base Pay, an election to defer Base Pay must be made
before December 31, or such earlier date established by the Committee, of
the calendar year preceding the calendar year with respect to which the
services associated with such Base Pay are performed, and in accordance with
procedures established by the Committee. 
Base Pay deferral elections shall be irrevocable on the December 31
of the calendar year preceding the calendar year with respect to which such
election pertains, or such earlier date as Agilent determines in its
discretion.  Notwithstanding the
foregoing, a new 


 


1

















 


Eligible Employee may make
an initial deferral election by the date the Committee specifies after the
individual receives enrollment materials; provided, however, that such initial
deferral election shall be made no later than the 30th day after the individual
becomes an Eligible Employee.


 


(b)                                 Amount of Base
Pay Deferral.  The
percentage that will be deferred from Base Pay for an Eligible Employee is
determined as follows:


 


(i)                                     The Eligible
Employee will elect an annual percentage to be deferred from Base Pay.  The maximum annual percentage of Base Pay
that may be deferred each calendar year is equal to one hundred percent of the
amount that Base Pay exceeds the Base Pay Threshold.


 


(ii)                                  The percentage
will be converted into an amount per pay period to be deferred and adjusted as
necessary (the “Pay Period Deferral Amount”).


 


3.2                                 Bonus Deferrals.


 


(a)                                  Timing of Bonus
Deferral.  An election
to defer Bonuses must be made before December 31, or such earlier date
established by the Committee, of the calendar year preceding the calendar year
with respect to which the services relating to the Bonuses are performed, and
in accordance with procedures established by the Committee.  Bonus deferral elections shall be irrevocable
on the December 31 of the calendar year preceding the calendar year with
respect to which such election pertains, or such earlier date as Agilent
determines in its discretion. 
Notwithstanding the foregoing, a Participant may elect to defer Bonuses
that are Performance Based Compensation; provided, however, such election shall
not be made later than six months prior to the end of the applicable
performance period and such election shall be irrevocable as Agilent determines
in its discretion as reflected in the election form.  Notwithstanding the foregoing, a new Eligible
Employee may make an initial bonus deferral election by the date the Committee
specifies after the individual receives enrollment materials; provided,
however, that such initial deferral election shall be made no later than the
30th day after the individual becomes an Eligible Employee and the election may
only apply to compensation paid for services performed after the election.


 


(b)                                 Amount of Bonus
Deferral.  An Eligible
Employee may defer any portion, up to 95%, of any Bonus to which he or she may
become entitled, so long as the deferral amount is expressed in terms of a
whole percentage point.  Once an election
is made by an Eligible Employee to defer any portion or all of a Bonus, the
appropriate dollar amount will be withheld from the Bonus when this amount
would have otherwise been paid.


 


3.3                                 LTPP Award
Deferrals and NES Award Deferrals.


 


(a)                                  Timing of LTPP
Award Deferral. 
Participants must make an election to defer an LTPP Award no later than
6 months before the end of the performance period so long as the LTPP Award
meets the definition of Performance Based Compensation.  If the LTPP Award does not meet the
definition of Performance Based Compensation, the election to defer the LTPP
Award must be made not later than: (i) December 31, or such earlier
date established by the Committee, of the calendar year preceding the calendar
year with respect to which the services 


 


2

















 


associated with such LTPP
Award are performed, and in accordance with procedures established by the
Committee, or (ii) the 30th day after the
individual first becomes an Eligible Employee and the election may only apply
to compensation paid for services performed after the election.  LTPP Award deferral elections shall be
irrevocable as Agilent determines in its discretion as reflected in the
election form.


 


(b)                                 Timing of NES
Award Deferral. 
Participants must make an election to defer a NES Award no later than 6
months before the end of the performance period so long as the NES Award meets
the definition of Performance Based Compensation.  If the NES Award does not meet the definition
of Performance Based Compensation, the election to defer the NES Award must be
made not later than: (i) December 31, or such earlier date
established by the Committee, of the calendar year preceding the calendar year
with respect to which the services associated with such NES Award are
performed, and in accordance with procedures established by the Committee, (ii) 30
days after the date of grant, provided that (1) the NES Award is subject
to a forfeiture condition requiring the continued performance of services for a
period of at least 12 months and (2) the election is made at least 12
months in advance of the earliest date at which the forfeiture condition could
lapse, or (iii) the 30th day after the individual first
becomes an Eligible Employee and the election may only apply to compensation
paid for services performed after the election. 
NES Award deferral elections shall be irrevocable as Agilent determines
in its discretion as reflected in the election form.


 


(c)                                  Amount of
Deferral of LTPP Award.  An
Eligible Employee may defer any portion, up to 95%, of any LTPP Award to which
he or she may become entitled, so long as the deferral amount is expressed in
terms of a whole percentage point; provided, however, if the percentage results
in a fractional share, the number of Shares deferred shall be rounded up to the
nearest whole Share.  Once an election is
made by an Eligible Employee to defer any portion or all of an LTPP Award, the
appropriate Shares will be withheld from the LTPP Award when the Shares would
have otherwise have been distributed.


 


(d)                                 Amount of
Deferral of NES Award.  An
Eligible Employee may defer any portion, up to 95%, of any NES Award to which
he or she may become entitled, so long as the deferral amount is expressed in
terms of a whole percentage point; provided, however, if the percentage results
in a fractional share, the number of Shares deferred shall be rounded up to the
nearest whole Share.  Once an election is
made by an Eligible Employee to defer any portion or all of a NES Award, the
appropriate Shares will be withheld from the NES Award when the Shares would
have otherwise have been distributed.


 


3.4                                 Company
Contributions. 
Notwithstanding anything provided in this Section 3 or otherwise in
the Plan to the contrary, the Committee shall have the discretion to provide
that company contributions may be made to the Plan for the benefit of a
Participant under the terms and conditions as may be specified by Agilent, in
any manner Agilent deems appropriate; provided, however, that any such
contribution shall comply with Section 409A of the Code.


 


Section 4.                                          Crediting
of Deferral Accounts.


 


Amounts deferred pursuant to
Section 3 shall be credited to a Deferral Account in the name of the
Participant.  Deferred Amounts arising
from deferrals of Base Pay shall be credited 


 


3

















 


to
a Participant’s Base Pay Deferral Account at least quarterly.  Deferrals resulting from amounts credited to
a Participant’s Bonus Deferral Account from the deferral of Bonuses shall be
credited to a Bonus Deferral Account as soon as practicable after such Bonus
would otherwise have been paid. 
Deferrals resulting from amounts credited to a Participant’s Deferral
Account from the deferral of LTPP Awards or NES Awards shall be credited to a
Participant’s LTPP Deferral Account or NES Deferral Account, as appropriate, as
soon as practicable after such LTPP Award or NES Award would otherwise have
been paid.  Any dividends paid on Shares
shall be credited to the LTPP Deferral Account or NES Deferral Account, as
appropriate.  The Participant’s rights in
the Deferral Account shall be no greater than the rights of any other unsecured
general creditor of Agilent.  Deferred
Amounts and Earnings thereon invested hereunder shall for all purposes be part
of the general funds of Agilent.  Any
payout to a Participant of amounts credited to a Participant’s Deferral Account
is not due, nor are such amounts ascertainable, until the Payout Commencement
Date.


 


Section 5.                                          Earnings
on the Deferral Account.


 


5.1                                 Crediting in
General.  Amounts in a Participant’s
Deferral Account will be credited at least quarterly with Earnings until such
amounts are paid out to the Participant under this Plan as set forth in Section 6.  All Earnings attributable to the Deferral
Account shall be added to the liability of and retained therein by
Agilent.  Any such addition to the
liability shall be appropriately reflected on the books and records of Agilent’s
Consolidated Group and identified as an addition to the total sum owing the
Participant.  The Deferral Account of a
Rollover Participant shall be credited with Earnings at the same time and
accounted for in the same manner as the Deferral Account of a Participant
(regardless of the Rollover Participant’s eligibility to participate in the
Plan), pro-rated to reflect the date on which the deferral account from a
Rollover Plan is transferred into the Plan.


 


5.2                                 Hypothetical
Investment Options.  Except as
otherwise provided in this Section 5.2, and subject to provisions of Section 4,
the Committee may, in its discretion, offer Participants a choice among various
Hypothetical Investment Options on which their Deferral Accounts may be
credited.  Such a choice is nominal in
nature, and grants Participants no real or beneficial interest in any specific
fund or property.  Provision of a choice
among Hypothetical Investment Options grants the Participant no ability to affect
the actual aggregate investments Agilent may or may not make to cover its
obligations under the Plan.  Any
adjustments Agilent may make in its actual investments for the Plan may only be
instigated by Agilent, and may or may not bear a resemblance to the
Participants’ hypothetical investment choices on an account-by-account
basis.  The timing, allowance and
frequency of hypothetical investment choices, and a Participant’s ability to
change how his or her Deferral Account is credited, is within the sole
discretion of the Committee.


 


5.3                                 Investment
Directions.  A
Participant may direct the deemed investment of the Participant’s Deferred
Amounts among the Hypothetical Investment Options, in the manner prescribed by
Agilent at the time of enrollment or re-enrollment.  Investment elections shall be in such minimum
percentage amounts with respect to each such option as permitted by
Agilent.  Notwithstanding any other
provision of the Plan to the contrary, all deferrals of non-cash LTPP Awards or
NES Awards shall be deemed to be invested in Shares until such Shares are paid
out in accordance with Section 6.


 


4

















 


5.4                                 Reinvestment
Directions.  On a daily
basis, by instructing a third party administrator that Agilent selects in its
discretion in the manner prescribed, a Participant may direct the reinvestment
of the Participant’s Deferral Accounts among the various Hypothetical
Investment Options; provided, however, that certain reinvestments may be
restricted by Agilent, the third party administrator or applicable law.  A Participant shall specify the reinvestment
amounts of the Participant’s Deferred Account to be invested in such
Hypothetical Investment Options. 
Reinvestment directions shall be in such minimum dollar or percentage
amounts as permitted by Agilent or the third party administrator.  Notwithstanding any other provision of the
Plan to the contrary, Participants may not direct the reinvestment of their
deferral of non-cash LTPP Awards or NES Awards.


 


5.5                                 No Investment
Directions.  In the
event that the Participant fails to direct his or her investment, a Participant’s
Deferral Account shall be credited with the deemed return on investment in
Vanguard Institutional Index Fund – Institutional Plus.  Notwithstanding the foregoing, all deferrals
of non-cash LTPP Awards or NES Awards shall be deemed to be invested in Shares.


 


Section 6.                                          Payout
to the Participants.


 


6.1                                 Termination.  The form and commencement of benefit may be
made in accordance with the Participant’s election at the time of deferral and
this Section 6.1.


 


(a)                                  Form of
Payout.


 


(i)                                     Prior to January 1,
2008 and if a Participant’s Aggregate Deferral Account Balance is equal to or
greater than $25,000 on the Termination Date, a Participant making a valid
election under this Section 6.1, and whose Termination Date occurs during
the first six (6) months of the calendar year, may elect to receive either
(a) a single lump sum payout in the first pay period in January of
the year following the Termination Year, or (b) a payout in annual
installments over a five (5) to fifteen (15) year period beginning with
the first pay period in January following the Termination Year.  A Participant making a valid election under
this Section 6.1, and whose Termination Date occurs during the second six (6) months
of the calendar year, may elect to receive either (a) a single lump sum
payout in the first pay period in January of the second year following the
Termination Year, or (b) a payout in annual installments over a five (5) to
fifteen (15) year period beginning with the first pay period in January of
the second year following the Termination Year. 
If, however, Participant’s Aggregate Deferral Account Balance is less
than $25,000 on the Termination Date, then the Participant will receive a
single lump sum payout at the first pay period in January following the
Termination Year; provided, that if the Termination Date occurs within the
second six months of the calendar year, payment of such lump sum will be made
in the first pay period in January of the second year following the
Termination Year.


 


(ii)                                  On or after January 1,
2008 and if a Participant’s Aggregate Deferral Account Balance is equal to or
greater than $25,000 on the Termination Date, a Participant making a valid
election under this Section 6.1, and whose Termination Date occurs 


 


5

















 


during the first six (6) months
of the calendar year, may elect to receive either (a) a single lump sum
payout in January of the year following the Termination Year, or (b) a
payout in annual installments over a five (5) to fifteen (15) year period
beginning in the January following the Termination Year.  A Participant making a valid election under
this Section 6.1, and whose Termination Date occurs during the second six (6) months
of the calendar year, may elect to receive either (a) a single lump sum
payout in the July of the year following the Termination Year, or (b) a
payout in annual installments over a five (5) to fifteen (15) year period
beginning in the July of the first year following the Termination
Year.  If, however, Participant’s
Aggregate Deferral Account Balance is less than $25,000 on the Termination
Date, then the Participant will receive a single lump sum payout in January following
the Termination Year; provided, that if the Termination Date occurs within the
second six months of the calendar year, payment of such lump sum will be made
in July following the Termination Year.


 


(iii)                               2008 Special
Payout Election on or before December 31, 2008.  Participants who are identified by the
Committee, in its sole discretion, may make a special payment election for
their Aggregate Deferral Account Balance in calendar year 2008; provided that
the election is made no later than December 31, 2008.  An election made pursuant to this
subparagraph (iii) shall be irrevocable when made and shall be subject to
any special administrative rules imposed by Agilent including rules intended
to comply with section 409A of the Code, and shall not become effective until January 1,
2009.  No election under this
subparagraph (iii) shall (A) change the payment date of any
distribution otherwise scheduled to be paid in 2008 or cause a payment to be
paid in 2008, or (B) be permitted after December 31, 2008.


 


(b)                                 Commencement of
Payout.  A Participant making a valid
election under this Section 6.1 may elect a Payout Commencement Date,
under either the single lump sum or the annual installment election addressed
in Section 6.1(a), that is the date determined under Section 6.1(a) plus
an additional one (1), two (2) or three (3) years.


 


(c)                                  Earnings on
Deferral Accounts.  Whatever
the form of payout under Section 6, and whatever the timing of the Payout
Commencement Date, the Deferral Account of a Participant shall continue to be
credited with Earnings until all amounts in such an account are paid out to the
Participant.


 


6.2                                 Default Form and
Commencement of Payout.


 


(a)                                  Prior to January 1,
2008, if a valid election under Section 6.1 is not made, and the
Participant’s Aggregate Deferral Account Balance is equal to or greater than
$25,000 on the Termination Date, then the Participant shall receive his or her
payout in annual installments over the fifteen (15) year period beginning with
the first pay period in January following the Termination Year; provided,
that if the Termination Date occurs within the second six months of the
calendar year, payment of such annual installments will begin with the first
pay period in January of the second year following the Termination
Year.  If, however, Participant’s Aggregate
Deferral Account Balance is less than $25,000 on the Termination Date, then the
Participant will receive a single lump sum payout at the first pay period in January following
the Termination Year; provided, that if the Termination Date occurs within the
second six months of the calendar 


 


6

















 


year, payment of such lump
sum will be made in the first pay period in January of the second year
following the Termination Year.


 


(b)                                 On or after January 1,
2008, if a valid election under Section 6.1 is not made, and the
Participant’s Aggregate Deferral Account Balance is equal to or greater than
$25,000 on the Termination Date, then the Participant shall receive his or her
payout in annual installments over the fifteen (15) year period beginning in January following
the Termination Year; provided, that if the Termination Date occurs within the
second six months of the calendar year, payment of such annual installments
will begin in July following the Termination Year.  If, however, Participant’s Aggregate Deferral
Account Balance is less than $25,000 on the Termination Date, then the
Participant may receive a single lump sum payout in January following the
Termination Year; provided, that if the Termination Date occurs within the
second six months of the calendar year, payment of such lump sum will be made
in July following the Termination Year.


 


6.3                                 Death of
Participant.


 


(a)                                  Prior to January 1,
2008 and if a Participant dies and a valid election was made under Section 6.1,
the Beneficiary will be paid in the same manner as the Participant would have
if he or she Terminated; the date of death shall be deemed the Termination
Date.  If the Participant dies and no
valid election was made, and the Participant’s Deferral Account balance is
equal to or greater than $25,000 on the date of death, then the Beneficiary
will receive the payout in annual installments over the fifteen (15) year
period beginning in January in the calendar year following the year of the
Participant’s death.  If, however, such
Deferral Account balance is less than $25,000 on the date of death, then the
Beneficiary shall receive a single lump sum in January of the year
following the year of death.


 


(b)                                 On or after January 1,
2008 and if a Participant dies and a valid election was made under Section 6.1,
the Beneficiary will be paid in the same manner as the Participant would have
if he or she Terminated; the date of death shall be deemed the Termination
Date.  If the Participant dies and no
valid election was made, and the Participant’s Deferral Account balance is
equal to or greater than $25,000 on the date of death, then the Beneficiary
will receive the payout in annual installments over the fifteen (15) year
period beginning in January in the calendar year following the year of the
Participant’s death.  If, however, such
Deferral Account balance is less than $25,000 on the date of death, then the
Beneficiary shall receive a single lump sum in January of the year
following the year of death.


 


6.4                                 Special Rules for
Participants with Deferrals of LTPP Awards or NES Awards.  In the event that the payout of a Deferral
Account includes payout under a Participant’s LTPP Deferral Account or NES
Deferral Account, then the payout of an LTPP Deferral Account and/or NES
Deferral Account shall be made subject to such rules and procedures as may
be established by Agilent.  However, any
such rules and procedures shall not effect the form or commencement date
of the benefit, unless otherwise required by law.


 


6.5                                 Special Rule for
Director Service.  A
Participant will be deemed to have Terminated if he or she ceases to be an
employee of an Employer, but is then a Director of Agilent.


 


7

















 


6.6                                 Specified
Employees.  Notwithstanding
any other Plan provision, no payment to a “specified employee” (as defined in
Treasury Regulation § 1.409A-1(i)) shall commence earlier than six (6) months
after the date of such individual’s Termination Date (except in the case of a
Termination due to death).  The
commencement of a validly elected payment should be delayed to the day that is
at least six (6) months after such Termination Date.


 


Section 7.                                          Hardship
Provision for Unforeseeable Emergencies.


 


Neither the Participant nor
his or her Beneficiary is eligible to withdraw amounts credited to a Deferral
Account prior to the time specified in Section 6.  However, such credited amounts may be subject
to early withdrawal if (1) an unforeseeable emergency occurs that is
caused by a sudden and unexpected illness or accident of the Participant, the
Participant’s spouse, the Beneficiary (if the Beneficiary is a natural person)
or of a dependent (as defined in Section 152 of the Code without regard to
Section 152(b)(1), (b)(2) or (d)(1)(B)) of the Participant, loss of
the Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
Participant’s control, (2) such circumstances would result in severe
financial hardship to the individual if early withdrawal is not permitted, and (3) any
other requirements established under the Code and regulations promulgated
thereunder, are satisfied.  A severe
financial hardship exists only when all other reasonably available financial
resources have been exhausted, including but not limited to (1) reimbursement
or compensation by insurance or otherwise, (2) liquidation of the
Participant’s assets, to the extent that liquidation of such assets would not
itself cause severe financial hardship, or (3) cessation of deferrals
under the Plan.  Examples of what are not
considered to be unforeseeable emergencies include the need to send a
Participant’s child to college or the desire to purchase a home.


 


The Committee shall have
sole discretion to determine whether to approve any withdrawal under this Section 7,
which amount will be limited to the amount necessary to meet the
emergency.  The Committee’s decision is
final and binding on all interested parties. 
A Participant who is then serving as a member of the Committee shall not
vote on whether or not he or she is eligible for such a withdrawal under this Section 7.


 


Section 8.                                          Designation
of Beneficiary.


 


The Participant shall, in
accordance with procedures established by the Committee, (1) designate a
Beneficiary hereunder, and (2) shall have the right thereafter to change
such designation.  No Beneficiary
designation shall be effective unless it is in writing, on the form required by
Agilent and provided to the appropriate person at Agilent prior to the
Participant’s death.  Notwithstanding the
foregoing, with respect to an employee who became a Plan Participant during the
Transition Period, all existing beneficiary designations on file with the HP
Executive Deferred Compensation Plan or the Prior Plan shall be deemed and
treated as designations under this Plan; provided, however, the last valid
beneficiary designation on file shall govern. 
In the case of a Participant’s death, payment due under this Plan shall
be made to the designated Beneficiary or, in the absence of such designation,
by will or the laws of descent and distribution in the Participant’s state of
residence at the time of his or her death.


 


8

















 


Section 9.                                          Limitation
on Assignments.


 


Except to comply with a
domestic relations order defined under Treasury Regulation §
1.409A-3(j)(4)(ii), benefits under this Plan are not subject to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishments by creditors of the Participant or the Participant’s Beneficiary
and any attempt to do so shall be void.


 


Section 10.                                   Administration.


 


10.1                           Administration
by Committee.  The
Committee shall administer the Plan. 
Notwithstanding any provision of the Plan to the contrary, no member of
the Committee shall be entitled to vote on any matter which would create a
significant risk that such member could be treated as being in constructive
receipt of some or all of his or her Deferral Account.  The Committee shall have the sole authority
to interpret the Plan, to establish and revise rules and regulations
relating to the Plan and to make any other determinations that it believes
necessary or advisable for the administration of the Plan.  Decisions and determinations by the Committee
shall be final and binding upon all parties, including shareholders,
Participants, Beneficiaries and other employees.  The Committee may delegate its administrative
responsibilities, as it deems appropriate.


 


10.2                           Claims and
Appeals.  The claims and appeals
provisions for the Plan are set forth in the summary to the Plan that is
provided to Participants.


 


10.3                           Books and
Records.  Books and records maintained
for the purpose of the Plan shall be maintained by the officers and employees
of Agilent at its expense and subject to supervision and control of the
Committee.


 


Section 11.                                   No
Funding Obligation.


 


Agilent’s Consolidated Group
is under no obligation to transfer amounts credited to the Participant’s
Deferral Account to any trust or escrow account, and Agilent’s Consolidated
Group is under no obligation to secure any amount credited to a Participant’s
Deferral Account by any specific assets of Agilent’s Consolidated Group or any
other asset in which Agilent’s Consolidated Group has an interest.  This Plan shall not be construed to require
Agilent’s Consolidated Group to fund any of the benefits provided hereunder nor
to establish a trust for such purpose. 
Agilent may make such arrangements as it desires to provide for the
payment of benefits, including, but not limited to, the establishment of a
grantor trust or such other equivalent arrangements as Agilent may decide.  No such arrangement shall cause the Plan to
be a funded plan within the meaning of Title I of ERISA, nor shall any such
arrangement change the nature of the obligation of Agilent’s Consolidated Group
nor the rights of the Participants under the Plan as provided in this
document.  Neither the Participant nor
his or her estate shall have any rights against Agilent’s Consolidated Group
with respect to any portion of the Deferral Account except as a general
unsecured creditor.  No Participant has
an interest in his or her Deferral Account until the Participant actually
receives the deferred payment.


 


9














 


Section 12.                                   Amendment
and Termination of the Plan.


 


Agilent, by action of the
Committee, in its sole discretion may suspend or terminate the Plan or revise
or amend it in any respect whatsoever; provided, however, that amounts already
credited to Deferral Accounts will continue to be owed to the Participants or
Beneficiaries and will continue to accrue Earnings and continue to be a
liability of Agilent.  The Committee may,
in its discretion, terminate the Plan in accordance with Section 409A of
the Code and the regulations promulgated thereunder, for any reason including a
Change in Control.  Participants or
Beneficiaries will be given notice prior to the discontinuance of the Plan or
reduction of any benefits provided by the Plan. 
Notwithstanding any other provision of the Plan, Agilent may without
Participant or Beneficiary consent amend the Plan or change the Plan’s
administrative rules and procedures or modify the terms of a deferral
election to comply with Section 409A of the Code.


 


Section 13.                                   Tax Withholding.


 


Agilent’s Consolidated Group
may withhold Taxes from any cash payment made or Shares distributed under the
Plan or Bonus plan or arrangement, owing as a result of any deferral or payment
hereunder, as Agilent deems appropriate in its sole discretion.  If, with respect to the pay period within
which a deferral, payment or Bonus is made under the Plan or Bonus plan or
arrangement, or the Participant receives insufficient actual cash compensation
to cover such Taxes, then Agilent’s Consolidated Group may withhold any
remaining Taxes owing from the deferred amount or Participant’s subsequent cash
compensation received, until such Tax obligation is satisfied, or otherwise
make appropriate arrangements with the Participant or Beneficiary for
satisfaction of such obligation.


 


Section 14.                                   Choice
of Law.


 


This Plan, and all rights
under this Plan, shall be interpreted and construed in accordance with ERISA,
as applicable, and, to the extent not preempted, the law of the State of
California, unless otherwise stated in the Plan.


 


Section 15.                                   Notice.


 


Any written notice to
Agilent required by any of the provisions of this Plan shall be addressed to
the chief personnel officer of Agilent or his or her delegate and shall become
effective when it is received.


 


Section 16.                                   No
Employment Rights.


 


Nothing in the Plan, nor any
action of Agilent pursuant to the Plan, shall be deemed to give any person any
right to remain in the employ of Agilent’s Consolidated Group or affect the
right of Agilent to terminate a person’s employment at any time and for any
reason.


 


10

















 


Section 17.                                   Severability
of Provisions.


 


If any particular provision
of this Plan is found to be invalid or unenforceable, such provision shall not
affect any other provisions of the Plan, but the Plan shall be construed in all
respects as if such invalid provision had been omitted.


 


Section 18.                                   Rollovers
from other Plans.


 


18.1                           Discretion to
Accept.  The Committee shall have
complete authority and discretion, but no obligation, to allow the Plan to
create Deferral Accounts for Rollover Participants and credit such accounts
with amounts to reflect the Rollover Participant’s deferral account in a
Rollover Plan.  The amounts credited to
such Deferral Accounts are fully subject to the provisions of this Plan.  Reference in the Plan to such a crediting as
a “rollover” or “transfer” of assets from a Rollover Plan is nominal in nature,
and confers no additional rights upon a Rollover Participant other than those
specifically set forth in the Plan.


 


18.2                           Status of
Rollover Participants.  A
Rollover Participant and his or her Beneficiary are fully subject to the
provisions of this Plan, except as otherwise expressly set forth herein.  A Rollover Participant who is not already a
Participant in the Plan and is not otherwise eligible to participate in the
Plan at the time of rollover, shall not be entitled to make any additional
deferrals under the Plan unless and until he or she has become an Eligible
Employee under the terms of the Plan.


 


18.3                           Payment to
Rollover Participants.  If
at the time of rollover or transfer, payments from a Rollover Participant’s
account in a Rollover Plan have already commenced from a Rollover Plan, he or
she shall continue to receive such payments in accordance with the form and
timing of payment provisions of such plan. 
lf a Rollover Participant is not yet eligible to receive payments from
the Rollover Plan at the time of the rollover or transfer, he or she is bound
by the payout provisions of this Plan.


 


Section 19.                                   Definitions.


 


19.1                           Agilent means Agilent
Technologies, Inc., a Delaware corporation.


 


19.2                           Agilent’s
Consolidated Group means Agilent or any business entity within the
Agilent consolidated group


 


19.3                           Aggregate
Deferral Account Balance means the sum of the Deferral Account and
any other plan or arrangement with respect to which deferrals of compensation
are treated as having been deferred under a single nonqualified deferred
compensation plan under Treasury Regulation § 1.409A-1(c)(2).


 


19.4                           Base Pay means the
annual base salary rate of cash compensation for employees on the U.S. payroll
of Agilent, excluding bonuses, incentive compensation, commissions, overtime
pay, Bonuses, severance payments, shift differential, payments under the
Agilent Technologies, Inc. Disability Plan 
or any other additional compensation.


 


19.5                           Base Pay
Deferral Account means the sub-account of the Deferral Account that
includes (i) the sum of amounts credited to Participant’s Base Pay
Deferral Account under Section 4, plus (ii) amounts credited (net of
amounts debited) in accordance with all the 


 


11

















 


applicable crediting
provisions of this Plan that relate to the Participant’s Base Pay Deferral
Account, less (iii) all distributions made to the Participant or his or
her Beneficiary pursuant to this Plan that relate to the Participant’s Base Pay
Deferral Account.


 


19.6                           Base Pay
Threshold means the amount defined in Section 401(a)(17)
of the Code, as adjusted by the Secretary of the Treasury under Section 415(d) of
the Code, in effect on January 1st of the calendar year for which amounts
are to be deferred.


 


19.7                           Beneficiary means the
person or persons designated by a Participant pursuant to Section 8, in
accordance with and accepted by Agilent, to receive any amounts payable under
the Plan in the event of the Participant’s death.


 


19.8                           Bonus shall have the
same meaning as “Variable Payment” as set forth in the Agilent Technologies, Inc.
Performance-Based Compensation Plan for Covered Employees, as amended from time
to time, and shall have the same meaning as “Variable Payment” and “Variable
Pay” as set forth in the Agilent Technologies, Inc. Pay-For-Results Plan
for Non-Covered Employees, as amended from time to time, or any other
management bonus plan or arrangement that provides a bonus compensation
opportunity to Eligible Employees as defined by the Committee from time to
time.  Bonus does not include any sales
incentive compensation or commission.


 


19.9                           Bonus Deferral
Account means the sub-account of the Deferral Account that includes (i) the
sum of amounts credited to Participant’s Bonus Deferral Account under Section 4,
plus (ii) amounts credited (net of amounts debited) in accordance with all
the applicable crediting provisions of this Plan that relate to the Participant’s
Bonus Deferral Account, less (iii) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to the
Participant’s Bonus Deferral Account.


 


19.10                     Change in
Control means the occurrence of any of the following events:


 


(a)                                  The sale,
exchange, lease or other disposition or transfer of all or substantially all of
the consolidated assets of Agilent to a person or group (as such terms are
defined or described in Treasury Regulation § 1.409A-3(i)(5)(v)(B)) which will
continue the business of Agilent in the future; or


 


(b)                                 A merger or
consolidation involving Agilent in which a person or group (as such terms are
defined or described in Treasury Regulation § 1.409A-3(i)(5)(v)(B)) more than
75% of the total voting power of the outstanding voting securities of Agilent
resulting from such transaction in substantially the same proportion as their
ownership of the total voting power of the outstanding voting securities of
Agilent immediately prior to such merger or consolidation; or


 


(c)                                  The acquisition
of ownership in which a person or group (as such terms are defined or described
in Treasury Regulation § 1.409A-3(i)(5)(v)(B)) acquires during the 12-month
period ending on the date of the most recent acquisition by such person or
persons at least 30% of the total voting power of the outstanding voting
securities of Agilent.


 


19.11                     Code means the
Internal Revenue Code of 1986, as amended from time to time.


 


12

















 


19.12                     Committee means the
Compensation Committee of the Board of Directors of Agilent or its delegate(s).


 


19.13                     Covered Officer shall have the
same meaning as “covered employee” does under Section 162(m) of the
Code.


 


19.14                     Deferral
Account means the account balance of a Participant in the Plan created from
Deferred Amounts, any company contributions or from a credit to a Participant’s
account from a Rollover Plan, and the Earnings thereon prior to a payout to the
Participant.


 


19.15                     Deferred Amount means the
amount the Participant elects to have deferred from Base Pay and/or a Bonus,
pursuant to Section 3, LTPP Award(s) the Participant elects to have
deferred, NES Award(s) the Participant elects to have deferred, or company
contributions.


 


19.16                     Earnings means the
deemed return on investment (or charge on investment loss) allocated to a
Participant’s Deferral Account, based on the return of the Hypothetical
Investment Options.


 


19.17                     Eligible
Employee means an employee on the U.S. payroll of Agilent’s
Consolidated Group who has a Base Pay rate at the time of election as specified
in Section 3 equal to or in excess of the Base Pay Threshold and who
Agilent notifies are eligible to participate in the Plan.


 


19.18                     Employer means Agilent
or any of its affiliates as determined under Treasury Regulation §
1.409A-1(h)(3).


 


19.19                     ERISA means the
Employee Retirement Income Security Act of 1974, as amended from time to time.


 


19.20                     Exchange Act means the
Securities Exchange Act of 1934, as amended from time to time.


 


19.21                     HP means
Hewlett-Packard Company, a Delaware corporation.


 


19.22                     Hypothetical
Investment Options means those options listed in Appendix A of this
Plan.  Said options are at the sole discretion of and subject to amendment
or termination by the Committee.


 


19.23                     LTPP means the
Agilent Technologies, Inc. Long-Term Performance Plan, as it may be
amended from time to time.


 


19.24                     LTPP Award means any
award to be delivered to a Participant at the end of a performance period under
the terms of the LTPP.


 


19.25                     LTPP Deferral
Account means the sub-account of the Deferral Account that includes (i) the
LTPP Awards credited to Participant’s LTPP Deferral Account under Section 4,
plus (ii) amounts credited (net of amounts debited) in accordance with all
the applicable crediting provisions of this Plan that relate to the Participant’s
LTPP Deferral Account, less (iii) all 


 


13

















 


distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to the
Participant’s LTPP Deferral Account.


 


19.26                     NES means the New
Executive Stock Award granted to an executive under the Agilent Technologies, Inc.
1999 Stock Plan, or any successor plan thereto.


 


19.27                     NES Award means any
award to be delivered to a Participant at the end of a performance period under
the terms of the NES Agreement.


 


19.28                     NES Deferral
Account means the sub-account of the Deferral Account that includes (i) the
NES Awards credited to the Participant’s NES Deferral Account under Section 4
plus (ii) amounts credited (net of amounts debited) in accordance with all
applicable crediting provisions of this Plan that relate to the Participant’s
NES Deferral Account, less (iii) all distributions made to the Participant
or his Beneficiary pursuant to this Plan that relate to the Participant’s NES
Deferral Account.


 


19.29                     Participant means any
individual who has a Deferral Account under the Plan or who is receiving or
entitled to receive benefits under the Plan. 
The term Participant also refers to a Rollover Participant, except where
expressly provided otherwise.


 


19.30                     Payout
Commencement Date means the month in which the payout to a
Participant of amounts credited to his or her Deferral Account first commences.


 


19.31                     Performance
Based Compensation means, as defined in Section 409A,
compensation the amount of which, or entitlement to which, is contingent on the
satisfaction of preestablished organizational or individual performance
criteria relating to a performance period of at least 12 consecutive
months.  Organizational or individual
performance criteria are considered preestablished if established in writing by
not later than 90 days after the commencement of the period of service to which
the criteria relates, provided that the outcome is substantially uncertain at
the time the criteria are established. 
At the time of the deferral election, in order for the election to be in
compliance with Code Section 409A, (i) the Participant must perform
services continuously for the period beginning on the later of the first day of
the performance period or the date the performance criteria are established,
and ending on the date of election with respect to the performance based
compensation and (ii) the election must not be made after the amount of
the performance based compensation becomes reasonably ascertainable.


 


19.32                     Plan means the
Agilent Technologies, Inc. 2005 Deferred Compensation Plan.


 


19.33                     Prior Plan means the
Agilent Technologies, Inc. Deferred Compensation Plan.


 


19.34                     Rollover
Participant means an individual with a Deferral Account in the
Plan transferred from a Rollover Plan in accordance with the provisions of Section 18.  The term Rollover Participant may also refer
to an individual who has previously been a Participant in the Plan, or an
existing Participant at the time of transfer.


 


14

















 


19.35                     Rollover Plan means the
nonqualified deferred compensation plan of a business entity acquired by
Agilent through acquisition of a majority of the voting interest in, or
substantially all of the assets of, such entity.


 


19.36                     Shares means shares
of the common stock of Agilent.


 


19.37                     Tax or (Taxes) means any
federal, state, local, or any other governmental income tax, employment tax,
payroll tax, excise tax, or any other tax or assessment owing with respect to
amounts deferred, any Earnings thereon, or any payments made to Participants or
Beneficiaries under the Plan.


 


19.38                     Termination or Terminates
means a separation from service within the meaning of Treasury Regulation §
1.409A-1(h).  A Participant shall not be
deemed to have separated from service if the Participant continues to provide
services to an Employer at an annual rate that is fifty percent or more of the
services rendered, on average, during the immediately preceding three full
years of employment with the Employer (or if employed by the Employer less than
three years, such lesser period); provided, however, that a separation from
service will be deemed to have occurred if a Participant’s service with an
Employer is reduced to an annual rate that is less than twenty percent of the
services rendered, on average, during the immediately preceding three full
years of employment with the Employer (or if employed by the Employer less than
three years, such lesser period).


 


19.39                     Termination
Date means the date on which the Participant Terminates employment.


 


19.40                     Termination
Year means the calendar year within which a Participant’s Termination Date
falls.


 


19.41                     Transition
Period means the period commencing with the beginning of Agilent’s Payroll
Date, and ending on the Distribution Date (as such terms are defined in the
Master Separation and Distribution Agreement between HP and Agilent, effective August 12,
1999).


 


15

















 


Section 20.                                   Execution.


 


IN WITNESS WHEREOF, Agilent
has caused this amended and restated Plan to be duly adopted by the undersigned
this 9th day of November, 2009, effective as of October 28, 2009.


 


Agilent Technologies, Inc.


 


 


	
  By:

  	
  /s/
  Marie Oh Huber

  	
   

  
	
   

  	
   
  Marie Oh Huber

  	
   

  
	
   

  	
   
  Senior Vice President, General Counsel and Secretary

  	
   

  
	
   

  	
   
  Agilent Technologies, Inc.

  	
   

  



 


16

















 


Appendix A


 


Investment Options


 


1.               Goldman Sachs Small Cap Value Fund –
Institutional Class


2.               Templeton Institutional Funds, Inc –
Foreign Equity Series – Primary Class


3.               Vanguard Institutional Index Fund –
Institutional Plus


4.               Domini Social Equity Fund - Investor
Shares


5.               Fidelity Contrafund®


6.               Fidelity Low-Priced Stock Fund


7.               Fidelity Magellan® Fund


8.               Harbor Capital Appreciation Fund –
Institutional Class


9.               Vanguard Extended Market Index Fund –
Institutional Shares


10.         Vanguard Balanced Index Fund


11.         Vanguard Target Retirement 2010 Fund –
Investor Shares


12.         Vanguard Target Retirement 2015 Fund –
Investor Shares


13.         Vanguard Target Retirement 2020 Fund –
Investor Shares


14.         Vanguard Target Retirement 2025 Fund –
Investor Shares


15.         Vanguard Target Retirement 2030 Fund –
Investor Shares


16.         Vanguard Target Retirement 2035 Fund –
Investor Shares


17.         Vanguard Target Retirement Income Fund –
Investor Shares


18.         JP Morgan Prime Money Market Fund –
Agency Class


19.         PIMCO Total Return Fund – Institutional
Class


 


17